Román-Oliveras v. Puerto Rico Electric Power Authority ( 2011 )


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  •            United States Court of Appeals
    For the First Circuit
    No. 09-1503
    HÉCTOR LUIS ROMÁN-OLIVERAS, et al.,
    Plaintiffs, Appellants,
    v.
    PUERTO RICO ELECTRIC POWER AUTHORITY (PREPA),
    JAMES VÉLEZ, JULIO RENTA, et al.,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Aida M. Delgado-Colón, U.S. District Judge]
    Before
    Lipez, Circuit Judge,
    Souter, Associate Justice,*
    and Selya, Circuit Judge.
    Juan R. Rodriguez, with whom Rodriguez Lopez Law Office,
    P.S.C. was on brief, for appellant.
    Marie L. Cortés-Cortés for appellee PREPA.
    Rosa Elena Pérez-Agosto, with whom Irene S. Soroeta-Kodesh,
    Solicitor General, Leticia M. Casalduc-Rabell, Deputy Solicitor
    General, Zaira Z. Girón-Anadón, Deputy Solicitor General, and Rosa
    Elena Pérez-Agosto, Assistant Solicitor General, were on brief, for
    appellees Vélez and Renta.
    August 18, 2011
    *
    The Hon. David H. Souter, Associate Justice (Ret.) of the
    Supreme Court of the United States, sitting by designation.
    LIPEZ, Circuit Judge.        Appellant Héctor Luis Román-
    Oliveras ("Román") claims that he was an exemplary employee at the
    Puerto Rico Electric Power Authority ("the Authority" or "PREPA")
    for more than two decades despite suffering from schizophrenia
    throughout the period of his employment.          In this action against
    the Authority and two PREPA supervisors, he alleges that he was
    inexplicably removed from his job in 2006, required to undergo
    multiple medical evaluations, and prevented from resuming his
    duties even though each evaluation pronounced him fit to work.
    Román brought this action against the Authority and two PREPA
    supervisors under federal and Commonwealth law, alleging violation
    of his civil rights and unlawful discrimination on the basis of his
    medical condition.1 The district court dismissed Román's complaint
    in its entirety.     It discerned no basis for relief under federal
    law   and,   accordingly,     declined    to   address   the    supplemental
    Commonwealth claims.
    Although we affirm the district court's rulings on most
    of Román's claims, we vacate the dismissal of his claim against his
    employer under the Americans with Disabilities Act ("ADA") because
    the   complaint   plausibly    depicts    discrimination       based   on   the
    perception that Román is disabled. On an issue of first impression
    1
    Also listed as defendants were unnamed "responsible"
    parties, including the named defendants' insurers. The complaint
    identified Román's wife, the couple's conjugal partnership, and
    Román's mother as co-plaintiffs. For convenience, we refer in our
    analysis only to Román and the PREPA defendants.
    -2-
    for our circuit, we conclude that Title I of the ADA does not
    provide for liability against individuals who are not themselves
    employers.2
    I.
    We   recite   the     facts    in   the   manner   appropriate      for
    reviewing a dismissal under Federal Rule of Civil Procedure 12(b):
    "[W]e       'assume      the    truth    of     all   well-pleaded    facts'   in     the
    complaint," and draw all reasonable inferences in the plaintiff's
    favor.       Rivera v. Centro Médico de Turabo, Inc., 
    575 F.3d 10
    , 13
    (1st       Cir.    2009)   (quoting      Centro       Medico   del   Turabo,   Inc.    v.
    Feliciano de Melecio, 
    406 F.3d 1
    , 5 (1st Cir. 2005)).3
    Before the events at issue in this litigation, Román had
    worked successfully for PREPA for twenty-two years while receiving
    regular psychiatric treatment for schizophrenia. The condition had
    been diagnosed more than thirty years earlier.                         Román received
    excellent evaluations and was always available for overtime work.
    Beginning in 2005, Román's immediate superior, defendant James
    2
    Because reactivation of the ADA claim opens the door to
    reinstatement of the supplemental Commonwealth claims, we also
    vacate the portion of the court's judgment dismissing those claims.
    See Sepúlveda-Villarini v. Dep't of Educ. of P.R., 
    628 F.3d 25
    , 30
    (1st Cir. 2010).
    3
    The district court relied on both Rule 12(b)(1) and Rule
    12(b)(6) in dismissing appellant's various claims.     The same
    standard applies to both subsections. See McCloskey v. Mueller,
    
    446 F.3d 262
    , 265-66 (1st Cir. 2006).
    -3-
    Vélez, and the plant superintendent, defendant Julio Renta,4 made
    Román's life difficult in retaliation for his union activities and
    role as a "leader of workm[e]n." Román's complaint states that the
    PREPA supervisors harassed him, "making improper rude comments
    against him, taking adverse person[ne]l action and fabricating
    labor cases against him."          The complaint accuses the defendants of
    attempting on one occasion to transfer Román "without the benefit
    of paying him [food] and car allowance" and of treating him
    "differently from similarly situated individuals outside of his
    protected group."        The complaint further alleges that Vélez and
    Renta    used    false   information     and    "their     official   positions
    improperly as employees and engineers of co-defendant PREPA" to
    cause harm to Román.
    On   March    1,   2006,   PREPA's    social     worker   asked   the
    Authority's physician to bar Román from working until he was
    evaluated by a psychiatrist, and PREPA thereafter did not allow him
    to work.    On April 24, the social worker received the psychiatric
    report, which stated that Román could resume his duties.                   On May
    23, PREPA "formally acknowledge[d]" the psychiatrist's report and
    recommendation.          Román,      however,     remained     out    of    work,
    involuntarily, despite the satisfactory report.                  On August 7,
    PREPA's physician        ordered    "asbestos[]    medical    evaluations"     of
    4
    The individual appellees identify "Renta" as "Rentas-Pujols"
    in their brief. We use the name that appears in the court docket.
    -4-
    Román.   The resulting report stated that Román was "fit for duties
    including as per his psychiatric condition."
    Although PREPA's physicians recommended on October 17
    that Román return to work, and he repeatedly asked to return,
    defendant   Renta     requested   additional   medical   evaluations     on
    November 13 and referred Román for an involuntary medical leave.
    Román also was asked for the evaluations of his private doctors.
    In January 2007, he submitted the requested medical certification
    from his psychiatrist.     Despite findings by "[a]ll of the doctors"
    that Román was capable of resuming his work, defendants again
    refused to allow him to do so, "changing the entire process of the
    reinstallation of plaintff[']s duties."
    Román was taken off PREPA's payroll in February 2007.
    Although he alleges that he was terminated, he submitted an
    employment certification in Spanish to the district court that,
    according to the court, "reflects that Román had been on medical
    leave, without pay, since February 10, 2007."            The defendants
    presented a translated employment certification stating that, as of
    September 5, 2007, Román remained a PREPA employee "hold[ing] the
    regular position of Central Power Plant Electrician II."               The
    complaint alleges, however, that Renta and Vélez ordered removal of
    Román's personal items from the work area, removal of his name
    from his    locker,    and reassignment   of   his   toolbox   to   another
    employee.
    -5-
    Román filed a timely complaint with the Equal Employment
    Opportunity Commission and subsequently filed this action, alleging
    violations of the ADA, 42 U.S.C. §§ 12101-12213;5 Title VII of the
    Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; the civil
    rights provision codified at 42 U.S.C. § 1983; and Articles 1802
    and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§
    5141, 5142. He alleged that defendants' actions violated his civil
    rights, created a hostile work environment, and subjected him to
    "adverse actions because of his medical condition and active
    participation with the Union."
    Defendants moved for dismissal and, after an exchange of
    updated pleadings, the district court dismissed with prejudice each
    of the federal claims in plaintiff's Second Amended Complaint. The
    court concluded that the hostile work environment claim was time-
    barred, that Román failed to allege facts showing that he was
    disabled within the meaning of the ADA, and that he had alleged
    "neither . . . a specific violation of federal law nor any
    independent facts" to support his section 1983 claim.    Given the
    deficiencies in the federal causes of action, the court declined to
    exercise supplemental jurisdiction over the associated Commonwealth
    claims and dismissed them without prejudice.
    5
    The complaint did not specify the title of the ADA under
    which suit was brought, but the district court accepted the Title
    I characterization adopted in plaintiff's opposition to defendants'
    motion to dismiss. We do likewise.
    -6-
    On appeal, appellant continues to press his ADA and
    section 1983 claims, but implicitly in his brief and explicitly at
    oral argument conceded the inadequacy of the complaint's Title VII
    allegations.    We therefore limit our discussion to the disability
    and civil rights claims.6     Our review is de novo.     See Coggeshall
    v. Mass. Bd. of Registration of Psychologists, 
    604 F.3d 658
    , 662
    (1st Cir. 2010) (applying de novo review to claims dismissed under
    subsections (1) and (6) of Federal Rule of Civil Procedure 12(b)).
    II.
    A. Section 1983
    Section 1983 does not provide "any substantive rights
    independent of those already granted under federal law," Clark v.
    Boscher, 
    514 F.3d 107
    , 112 (1st Cir. 2008), and a plaintiff seeking
    to recover under that provision must therefore "identify the
    specific constitutional [or statutory] right allegedly infringed,"
    Albright v. Oliver, 
    510 U.S. 266
    , 271 (1994); see also Nieves v.
    McSweeney, 
    241 F.3d 46
    , 53 (1st Cir. 2001).        Appellant's complaint
    lacks any such specificity. Although the complaint alleges that he
    was   treated   differently   from    "similarly   situated   individuals
    6
    It is not clear from the complaint whether appellant's
    hostile environment claim is disability-based or linked to his
    union and other leadership activities. Its precise nature does not
    in any event matter because appellant's brief does not address the
    court's rejection of that claim and, accordingly, we deem it
    waived. See 
    Sepúlveda-Villarini, 628 F.3d at 28
    . Hence, in our
    discussion of the ADA, we consider only the claim that Román was
    unlawfully removed from his job on account of his disability.
    -7-
    outside of his protected group" – language evocative of an equal
    protection claim – he has never asserted a violation of the Equal
    Protection Clause of the Constitution.7
    Nor does the complaint use the term "due process," which
    Román now argues is the right underlying his section 1983 claim.
    He maintains that the paragraphs in the complaint describing
    PREPA's repeated refusal to reinstate him were sufficient to frame
    a procedural due process violation because, in the words of the
    complaint, the defendants "chang[ed] the entire process of the
    reinstallation of plaintiff[']s duties."
    The   allegations   concerning     the    "process"   of    his
    reinstatement,    however,   establish   the   factual   basis    for   his
    disability discrimination claim, i.e., that he was repeatedly
    forced to undergo medical evaluations and prevented from working
    despite reports showing that his schizophrenia did not affect his
    capacity to work.      See infra Part II.B.          Without more, those
    allegations do not also signal a due process claim.         Such a claim
    requires a showing that the plaintiff was deprived of a protected
    liberty or property interest without "adequate notice and an
    opportunity to be heard 'at a meaningful time and in a meaningful
    manner.'"   Aponte-Rosario v. Acevedo-Vilá, 
    617 F.3d 1
    , 9 (1st Cir.
    7
    The district court noted that appellant's perfunctory
    allegation that he experienced adverse treatment because of his
    "active participation with the Union" may suggest a constitutional
    claim, but any such cause of action was too insufficiently
    developed to warrant consideration. We agree.
    -8-
    2010) (quoting Amsden v. Moran, 
    904 F.2d 748
    , 753 (1st Cir. 1990)).
    Appellant's complaint does not identify a protectible interest, and
    it says nothing about either lack of notice or the absence of a
    meaningful opportunity to be heard.8
    In effect, appellant asks that his section 1983 cause of
    action be saved because the allegation of faulty procedures could
    have supported a second, constitutional theory of recovery.              The
    due process theory was not articulated in the complaint, however,
    and appellant thus failed with regard to this claim to comply with
    the requirement of Federal Rule of Civil Procedure 8(a)(2) that
    "every complaint contain 'a short and plain statement of the claim
    showing that the pleader is entitled to relief.'" Ocasio-Hernández
    v. Fortuño-Burset, 
    640 F.3d 1
    , 5 (1st Cir. 2011) (quoting Fed. R.
    Civ.       P.   8(a)(2));   
    id. (explaining that
      the   Rule   "requires
    sufficient detail in the complaint to give a defendant fair notice
    of the claim and the grounds upon which it rests").            We therefore
    affirm dismissal of the section 1983 claim.
    8
    At oral argument, appellant's counsel asserted that Román
    has a property interest in his job because he is a public employee.
    Although Román alleged that PREPA is "a public corporation and
    government agency," government employment does not always confer a
    property interest and related procedural due process rights. See
    Concepción Chaparro v. Ruiz-Hernández, 
    607 F.3d 261
    , 264 (1st Cir.
    2010) ("In order for plaintiffs to have procedural due process
    rights in their employment, each plaintiff must have had a
    reasonable expectation, based on a statute, policy, rule, or
    contract, that he or she would continue to be employed.").        In
    keeping with his failure to allege other elements of a due process
    claim, Román did not allege a basis for a property interest in his
    position.
    -9-
    B. ADA
    To state a claim of disability discrimination under Title
    I of the ADA, Román needed to allege facts showing that (1) he was
    disabled within the meaning of the Act; (2) he could perform the
    essential   functions   of   his   job,   with     or   without   reasonable
    accommodation, and (3) the employer took adverse action against
    him, in whole or in part, because of his disability.              Ruiz Rivera
    v. Pfizer Pharm., LLC, 
    521 F.3d 76
    , 82 (1st Cir. 2008); Bailey v.
    Ga.-Pac. Corp., 
    306 F.3d 1162
    , 1166 (1st Cir. 2002). An individual
    is disabled for purposes of the ADA if he (1) has a physical or
    mental impairment that substantially limits one or more major life
    activities; (2) has a record of such an impairment; or (3) is
    regarded as having such an impairment.           Ruiz 
    Rivera, 521 F.3d at 82
    ; see also 42 U.S.C. § 12102(2) (2008).9
    The district court concluded that Román had failed to
    allege facts sufficient to establish that he was disabled under any
    of the statute's three definitions.          We agree that the complaint
    falls short on the first two alternatives.         As to the first option,
    the district court correctly noted that Román did not allege that
    schizophrenia    substantially     limited   any    aspect   of    his   life,
    9
    The ADA Amendments Act of 2008, Pub. L. No. 110-325,
    § 2(a)(4)-(6), 122 Stat. 3553, which took effect January 1, 2009,
    does not apply here, as the Act does not retroactively cover
    activities that occurred before its passage. See Carreras v. Sajo,
    Garcia & Partners, 
    596 F.3d 25
    , 33 n.7 (1st Cir. 2010).         We
    therefore rely on the pre-amendment statutory provisions and the
    case law interpreting those provisions.
    -10-
    including his ability to work.               Indeed, the thrust of appellant's
    complaint is that he was fully capable of working, but was unfairly
    denied the opportunity to do so "because of his medical condition."
    He thus has not stated a claim of disability discrimination based
    on the condition of schizophrenia itself.
    For a similar reason, the district court correctly found
    that Román's complaint failed to satisfy the "record of impairment"
    prong of the disability definition.                  The "record" provision is
    designed "to protect those who have recovered or are recovering
    from substantially limiting impairments from discrimination based
    on their medical history."              
    Bailey, 306 F.3d at 1169
    .            Thus, to
    qualify for ADA coverage on the basis of this provision, Román
    would   need   to   show    that       in    the   past    he   had,   "or   has   been
    misclassified as having, an impairment that substantially limited
    a major life activity."          
    Id. Again, because
    Román has not alleged
    substantial limitations as a result of schizophrenia, he failed to
    state an ADA claim based on having a record of impairment.
    Finally,        the    district         court    rejected     appellant's
    "regarded as" claim on the ground that he had "failed to allege
    facts sufficient to show that defendants ever regarded Román's
    schizophrenia as having a substantial impact on his work."                          To
    prove a   regarded    as claim          against     his employer,       a    plaintiff
    ordinarily must show either that the employer (1) "mistakenly
    believes that [he] has a physical impairment that substantially
    -11-
    limits one or more major life activities," or (2) "mistakenly
    believes that   an   actual, nonlimiting     impairment   substantially
    limits one or more major life activities."        Sutton v. United Air
    Lines, Inc., 
    527 U.S. 471
    , 489 (1999), superseded by statute, ADA
    Amendments Act of 2008, Pub. L. No. 110-325, § 2(a)(4)-(6), 122
    Stat. 3553; see also Ruiz 
    Rivera, 521 F.3d at 83
    ; Sullivan v.
    Neiman Marcus Grp., Inc., 
    358 F.3d 110
    , 117 (1st Cir. 2004).          We
    focus on the second of these alternatives.10
    To survive a motion to dismiss, a plaintiff must allege
    "only enough facts to state a claim to relief that is plausible on
    its face."   Bell Atl. v. Twombly, 
    550 U.S. 544
    , 570 (2007).          "A
    claim has facial plausibility when the plaintiff pleads factual
    content that allows the court to draw the reasonable inference that
    the defendant is liable for the misconduct alleged."        Ashcroft v.
    Iqbal, 
    129 S. Ct. 1937
    , 1949 (2009).    According to the allegations
    in the complaint, Román was removed from his position and forced to
    undergo   multiple   medical   evaluations   at   the   behest   of   the
    defendants, and also was required to submit a medical certification
    from his treating psychiatrist.      Despite favorable test results
    each time, defendants persisted in refusing to allow Román to work.
    10
    Appellees assert that Román failed to argue in his brief on
    appeal that he was disabled under the "regarded as" prong and has
    thus waived that issue. Although Román's entire brief is barely
    adequate, we do not consider the claim waived. In addition, we see
    no prejudice in reaching the issue; the district court addressed it
    on the merits, as did appellees in their appellate briefing.
    -12-
    Taken as true, these allegations, together with the
    allegation that Román always performed his job well, readily
    support three      pertinent   inferences:      (1)    defendants   mistakenly
    believed that Román's psychiatric condition substantially limited
    his ability to do his job; (2) they refused to let him work based
    on that erroneous, discriminatory judgment; and (3) they repeatedly
    attempted    to    justify   removing   him    from    his   job   through   the
    psychiatric and other medical testing. To state a violation of the
    ADA when the major life activity at issue is working, however,
    Román must show "'not only that the employer thought that he was
    impaired in his ability to do the job that he held, but also that
    the employer regarded him as substantially impaired in "either a
    class of jobs or a broad range of jobs in various classes as
    compared    with   the   average   person     having   comparable    training,
    skills, and abilities."'"          Ruiz 
    Rivera, 521 F.3d at 83
    (quoting
    
    Sullivan, 358 F.3d at 117
    (quoting Murphy v. United Parcel Serv.,
    Inc., 
    527 U.S. 516
    , 523 (1999))).
    Although the complaint does not explicitly assert that
    PREPA had such a broad perception of Román's incapacity, the
    allegations are sufficient to embrace that contention.               According
    to the complaint, PREPA removed Román from his position without any
    meaningful effort to offer him alternative positions appropriate
    for whatever limitations his employer attributed to him.                 Román
    alleges one attempted transfer, but his objections to it – based on
    -13-
    denial of food and travel allowance – suggest it was a temporary
    relocation rather than reassignment to a new position deemed more
    suitable   for    his   abilities.     In   any    event,   given   that   the
    disability at issue is a mental condition rather than a discrete
    physical limitation, defendants' actions in removing Román and
    repeatedly demanding psychiatric evaluations permit the inference
    that defendants deemed him disqualified from a broad range of jobs.
    Cf. Quiles-Quiles v. Henderson, 
    439 F.3d 1
    , 6-7 (1st Cir. 2006)
    (concluding      that   supervisors'   belief     that   plaintiff's   mental
    impairment posed a safety risk to coworkers, "preclud[ing] him from
    holding most jobs in our economy," permitted jurors to find that
    employer regarded him as disabled); Watts v. United Parcel Serv.,
    
    378 F. App'x 520
    , 526 (6th Cir. 2010) (unpublished) ("When a
    defendant flatly bars a plaintiff from working at any job at the
    defendant's company, that is generally sufficient proof that the
    employer regards the plaintiff as disabled in the major life
    activity of working so as to preclude the defendant being awarded
    judgment as a matter of law.").
    Román has thus made a sufficient showing of disability
    within the meaning of the ADA to survive defendants' motion to
    dismiss.   His allegations easily satisfy the other two pleading
    prerequisites for his claim to proceed: that he could perform the
    essential functions of his job and that PREPA took adverse action
    against him, in whole or in part, because of his disability.                We
    -14-
    see no alternative view of the allegations that is "'just as much
    in line' with innocent conduct" as with disability discrimination,
    
    Ocasio, 640 F.3d at 11
    (quoting 
    Twombly, 550 U.S. at 554
    ); see also
    
    Iqbal, 129 S. Ct. at 1949
    , and Román has thus passed "the line
    between possibility and plausibility" in asserting a regarded-as
    violation of the ADA, 
    Twombly, 550 U.S. at 557
    .
    We hasten to add that we offer no view on the merits of
    his claim.   The question at this stage of the case is not "the
    likelihood that a causal connection will prove out as fact."
    
    Sepúlveda-Villarini, 628 F.3d at 30
    .     Rather, "the standard is
    plausibility assuming the pleaded facts to be true and read in a
    plaintiff's favor."   Id.; see also 
    Twombly, 550 U.S. at 563
    n.8
    ("[W]hen a complaint adequately states a claim, it may not be
    dismissed based on a district court's assessment that the plaintiff
    will fail to find evidentiary support for his allegations or prove
    his claim to the satisfaction of the factfinder.").      Here, the
    pleaded facts support "[a] plausible but inconclusive inference" of
    discrimination based on disability, 
    Sepúlveda-Villarini, 628 F.3d at 30
    , and Román is therefore entitled to proceed with his ADA
    claim.
    C. Individual Liability
    Appellees Vélez and Renta argue that, regardless of our
    view of the sufficiency of the ADA allegations, they should be
    dismissed from the case because individuals are not subject to
    -15-
    liability under Title I of the statute.         They acknowledge that
    neither we nor the Supreme Court has explicitly rejected individual
    liability under the ADA, but point out that a number of other
    circuits have taken that view.11     See Albra v. Advan, Inc., 
    490 F.3d 826
    , 830 (11th Cir. 2007); Walsh v. Nev. Dep't of Human Res., 
    471 F.3d 1033
    , 1037-38 (9th Cir. 2006); Fasano v. Fed. Reserve Bank of
    N.Y., 
    457 F.3d 274
    , 289 (3d Cir. 2006); Corr v. MTA Long Island
    Bus, 
    199 F.3d 1321
    , 
    1999 WL 980960
    , at *2 (2d Cir. Oct. 7, 1999)
    (unpublished); Butler v. City of Prairie Vill., 
    172 F.3d 736
    , 744
    (10th Cir. 1999); EEOC v. AIC Sec. Investigations, Ltd., 
    55 F.3d 1276
    , 1282 (7th Cir. 1995).     In addition, Vélez and Renta assert
    that such a conclusion is the logical extension of our holding that
    Title VII, an analogous statute, does not support personal capacity
    claims.   See Fantini v. Salem State Coll., 
    557 F.3d 22
    , 31 (1st
    Cir. 2009).
    We agree that the logic of Fantini is compelling here.
    As other courts have observed, "[t]he statutory scheme and language
    of [Title I of] the ADA and Title VII are identical in many
    respects."    
    Walsh, 471 F.3d at 1038
    ; see also, e.g., 
    AIC, 55 F.3d at 1279-80
    .     Both    statutes    direct   their   prohibitions   to
    11
    As Vélez and Renta note, we previously declined to reach the
    issue while noting that other circuits, as well as district courts
    within this circuit, have held that individuals are not subject to
    suit under the ADA. See Acevedo López v. Police Dep't of P.R., 
    247 F.3d 26
    , 29 (1st Cir. 2001).
    -16-
    "employer[s],"12 and the ADA's definition of employer mirrors Title
    VII's. Under both, an employer is "a person engaged in an industry
    affecting commerce who has fifteen or more employees . . . and any
    agent of such . . . person."        42 U.S.C. § 12111(5)(A) (ADA); see
    also 
    id. at §
    2000e(b) (Title VII).
    In Fantini, we recognized that Title VII's exemption for
    small employers signified an intention not "'to burden small
    entities with the costs associated with litigating discrimination
    
    claims.'" 557 F.3d at 29
    (quoting Miller v. Maxwell's Int'l Inc.,
    
    991 F.2d 583
    , 587 (9th Cir. 1993)).         We quoted the Ninth Circuit's
    observation that "'[i]f Congress decided to protect small entities
    with limited resources from liability, it is inconceivable that
    Congress    intended   to   allow   civil    liability   to   run   against
    individual employees.'"      
    Id. (quoting Miller,
    991 F.2d at 587).
    Hence, we accepted that the statutory reference to "any agent" in
    the definition of "employer" does not connote individual liability,
    but "'simply . . . establish[es] a limit on an employer's liability
    for its employees' actions.'"        
    Fantini, 557 F.3d at 30
    (quoting
    Lissau v. S. Food Serv., Inc., 
    159 F.3d 177
    , 180 (4th Cir. 1998));
    see also Mason v. Stallings, 
    82 F.3d 1007
    , 1009 (11th Cir. 1996)
    12
    The ADA prohibits discriminatory conduct by a "covered
    entity," 42 U.S.C. § 12112(a), and provides that "[t]he term
    'covered entity' means an employer, employment agency, labor
    organization, or joint labor-management committee," 
    id. at §
    12111(2).    Title VII states, inter alia, that specified
    discriminatory practices are unlawful "for an employer."    42
    U.S.C. § 2000e-2(a).
    -17-
    (noting      that   "the    'agent'    language     was   included   to   ensure
    respondeat superior liability of the employer for the acts of its
    agents").
    We also relied on precedent noting that changes to Title
    VII's remedial scheme enacted in 1991 – applicable to the ADA as
    well – bolstered the conclusion that individuals are not liable
    under the statutes.             
    Fantini, 557 F.3d at 31
    ; see 42 U.S.C.
    § 1981a.      Previously, the ordinary remedies available under Title
    VII   were     limited     to   back   pay    and   equitable   relief,   which
    "'"typically are only obtainable from an employing entity, not from
    a mere individual."'" 
    Fantini, 557 F.3d at 31
    (quoting 
    Lissau, 159 F.3d at 181
    (quoting 
    AIC, 55 F.3d at 1281
    )).              The 1991 amendments
    added compensatory and punitive damages calibrated to the size of
    the employer.       The "sliding scale of liability," which ranges from
    a maximum of $50,000 for companies that employ up to one hundred
    workers and a maximum of $300,000 for companies that employ more
    than 500 employees, 42 U.S.C. § 1981a(b)(3), "does not stipulate an
    amount in cases where a plaintiff seeks to hold an individual
    supervisor liable."        
    Lissau, 159 F.3d at 181
    .        Thus, we concluded
    that neither the original remedial scheme nor the amendments
    contemplated individual liability. See 
    Fantini, 557 F.3d at 30
    -31;
    see also 
    AIC, 55 F.3d at 1281
    ; Sheridan v. E.I. DuPont de Nemours
    & Co., 
    100 F.3d 1061
    , 1077 (3d Cir. 1996) (en banc) (noting that
    Congress's failure to state "the amount of damages, if any, that
    -18-
    would be payable by individuals . . . strongly suggests that [it]
    did not contemplate that such damages would be assessed against
    individuals who are not themselves the employing entity").
    We see no basis for reaching a different outcome under
    Title I of the ADA.       Indeed, given the parallel statutory language
    and   the   identical     1991    amendment      to   the   statutes'      remedial
    provisions, we think it apparent that Congress intended that these
    two employment discrimination provisions be treated uniformly.                  We
    thus agree with the virtually universal view that Title I of the
    ADA, like Title VII of the Civil Rights Act, "'addresses the
    conduct of employers only and does not impose liability on co-
    workers.'"    
    Fantini, 557 F.3d at 31
    (quoting Powell v. Yellow Book
    U.S.A., Inc., 
    445 F.3d 1074
    , 1079 (8th Cir. 2006)).                   Hence, the
    claims against Vélez and Renta were properly dismissed.
    III.
    For   the    reasons    we    have    discussed,    we    affirm   the
    dismissal of Román's claims under Title VII and 42 U.S.C. § 1983,
    and we also affirm dismissal of the ADA claims against appellees
    Vélez and Renta.        Román has waived any challenge to the dismissal
    of his hostile environment claim.               We vacate the portion of the
    district court's order dismissing the Title I ADA claim against
    PREPA.      Likewise,      we    vacate   the    dismissal     of    the   pendent
    Commonwealth claims, which the district court declined to hear in
    the absence of any surviving federal claims.
    So ordered.     Costs to appellant.
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